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A Constitutional Solution to Iraq’s Current Crisis: A Ninewa Federal Region

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The current crisis in Iraq reveals deep ethnic and regional fault lines in the Iraqi body politic. One factor contributing to the astonishing success of ISIS in driving through Mosul all the way to the vicinity of the capital itself has been the acquiescence, if not the actual support, of the local populations in the areas they have overrun. Some Sunni Arabs in northern Iraq have welcomed ISIS. Whether that feeling of welcome will persist in the face of ISIS’s brutal methods is less than certain; what is certain is that these Sunnis are deeply disaffected with Prime Minister Maliki’s regime in Baghdad. Thus, resolution of the current military crisis is complicated by a difficult underlying political crisis.

As complex as this situation is, the germ of a solution is ready to hand and hiding in plain sight – embedded, in fact, in Iraq’s constitution itself. That solution is the formation of a new federal region within Iraq.

Most people are aware of the autonomous Kurdistan Regional Government within Iraq. Fewer realize that the Iraqi Constitution itself, at Article 117, section 1, recognizes Kurdistan as a federal region. What almost no one realizes is that Iraq’s constitution further provides for any governorate or group of governorates in Iraq to form new federal regions, each with the same powers and autonomy that the Kurdistan Region enjoys today.

Federal regions are governed at Section Five, Chapter One of the Iraqi Constitution. Article 117, section 2 provides that “[t]his Constitution shall affirm new regions established in accordance with its provisions.” Article 118 mandates that the Council of Representatives enact a law defining “the executive procedures to form regions” not later than 6 months after its first meeting.[i] Article 119 provides two methods for governorates to assert their right to form regions: by request of one third of the council of each governorate seeking formation of a region, or via plebiscite securing the votes of one tenth of the governorate’s voters, with such request to be ratified by referendum.

Once formed, a new federal region would have substantial powers[ii], including the right to adopt its own regional constitution; the right to amend the operation of federal legislation within the governorate on matters not of exclusive federal jurisdiction; the right to open regional offices in foreign embassies; and most importantly, the right to administer their region locally, to include formation of local “police, security forces, and guards of the region.”[iii] A new federal region would also be entitled to “an equitable share of the national revenues.”[iv]

Why a new federal region for Ninewa and other contiguous, Sunni-dominated governorates? And why would anyone go along with such a proposal? In the Sunni-dominated areas, the offer of their own federal region would get them out from under the thumb of the regime in Baghdad, from whom they feel increasingly alienated and by whom they feel ignored. Furthermore, autonomy comparable to that enjoyed in Kurdistan, with a dedicated stream of revenue from the national coffers, might be a very strong inducement to the Sunni tribes to turn away from ISIS and return to the national fold – especially when the inevitable day arrives that they begin to feel the nasty bite of the brutality for which ISIS is infamous.

What about the other actors in this great drama? The Kurdistan Region can certainly be induced, not only to acquiesce in the formation of a new, rival region, but perhaps even to provide assistance in the form of technical advice based upon their own extensive experience. Such assistance is not wholly without precedent.[v] But why would they do so? For two reasons: First, formation of another federal region would serve to legitimize, at least to some extent, their own region. But a larger inducement is probably necessary, and that inducement is at hand: As price for their support, the Kurds could be offered formal recognition of what they have already accomplished on the ground: control of Kirkuk and the other disputed areas that they have controlled since the U.S. invasion or that they have seized since the ISIS offensive. This may prove a hard pill for Sunnis and others in the area to swallow – but the inducement of substantial autonomy from Baghdad may be enough to overcome any scruples on the subject. Other actors would have their own views, of course. Neither Iran nor Turkey can expect to be particularly warm to the idea of an expanded Kurdistan with fewer reasons for remaining tied to the rest of Iraq; nor can Iran be partial to the prospect of an autonomous Sunni region in Iraq. But they can hardly be happy about the prospect of a huge swath neighboring territory dominated by a Sunni terrorist organization, either. Both of these powers have managed to reach accommodation with the Kurdistan Region, misgivings about their own Kurdish populations notwithstanding; and both can be expected make their accommodations with a new federal region as well.

That leaves one major player on the board: Prime Minister Maliki and his government. That Maliki would be aghast at such a proposal goes without saying. But Maliki is faced with an extraordinary challenge, which may make extraordinary concessions acceptable.

[i] Whether such a law was ever passed I do not know. If not, now would be an ideal time to pass one.